Richard Epstein, "The Problem With Net Neutrality"

The Problem With Net Neutrality

Richard A. Epstein

Defining Ideas

January 20, 2014

This past week in Verizon v. FCC, the Federal Circuit Court for the District of Columbia once again addressed the mysterious role that net neutrality plays in the Federal Communications Commission’s regulatory arsenal. The simplest definition of net neutrality stresses that a telecommunications company must treat all data on the internet equally, without allowing for any prioritization by content or price differentials among customers.

The FCC sought to regulate the operations of broadband companies, like Verizon, that routinely speed large amounts of data across the Internet through high-speed technological devices such as cable modems. In order to implement its program, the FCC adopted certain anti-blocking, anti-discrimination, and disclosure rules that limit how these broadband companies can operate. The case thus raises tricky questions of law and profound issues social policy.

Federal Circuit Court Judge David Tatel’s lengthy and meticulous decision said little or nothing about the soundness of net neutrality. But it had a great deal to say about the FCC’s tangled regulatory web, especially as it relates to the elusive distinction between a “common carrier” on the one hand and an “information service provider” on the other.